CHAPTER IV . – RESPONSIBILITY OF THE CARRIER
- – The carrier is responsible for total or partial loss, or damage, which occurs between the time of taking charge of the goods and that of delivery, as well as delay in delivery.
- – The carrier is released from this liability if the loss, damage or delay was caused by fault on the part of the entitled person, an order from the latter not resulting from fault on the part of the carrier, a defect. specific to the goods, or circumstances that the carrier could not avoid and the consequences of which he could not avoid.
- – The transporter cannot claim, in order to discharge himself from his responsibility, neither of the defects of the vehicle which he uses to carry out the transport nor of the faults of the person of whom he would have hired the vehicle or of the attendants of this one.
- – Taking into account article 18, paragraphs 2 to 5, the carrier is relieved of his responsibility when the loss or damage results from the particular risks inherent in one of the following facts or in several of them:
- a) use of open vehicles not covered, when this use has been expressly agreed and mentioned in the consignment note;
- b) absence or defective packaging for goods exposed by their nature to waste or damage when they are not packed or are poorly packed;
- c) handling, loading, stowing or unloading of the goods by the consignor or consignee or persons acting on behalf of the consignor or consignee;
- d) nature of certain goods exhibited, by causes inherent to this very nature, either to total or partial loss, or to damage, in particular by breakage, rust, internal and spontaneous deterioration,desiccation, leakage, normal waste or the action of vermin and rodents;
(e) insufficiency or imperfection of marks or package numbers;
- f) transport of live animals.
- – If, by virtue of this article, the carrier does not answer for some of the factors which caused the damage, its responsibility is engaged only in the proportion where the factors for which it answers under this article have contributed to the damage. pity.
- – Proof that the loss, damage or delay was caused by one of the facts provided for in article 17, paragraph 2, is incumbent on the carrier.
- – When the carrier establishes that, having regard to the factual circumstances, the loss or damage may have resulted from one or more of the particular risks provided for in Article 17, paragraph 4, there is a presumption that it results from it.The beneficiary can however prove that the damage did not have one of these risks for total or partial cause.
- – The presumption referred to above is not applicable in the case provided for in article 17, paragraph 4-a, if there is an abnormally large missing or lost package.
- – If the transport is carried out by means of a vehicle fitted out with a view to shielding the goods from the influence of heat, cold, temperature variations or air humidity, the transporter cannot invoke the benefit of Article 17, paragraph 4-d, only if he provides proof that all the measures incumbent on him, taking into account the circumstances, have been taken with regard to the choice, maintenance and employment of these arrangements and that he complied with any special instructions that may have been given to him.
- – The carrier can only invoke the benefit of article 17, paragraph 4-f, if he provides proof that all the measures normally incumbent on him, taking into account the circumstances, have been taken and that he complies with any special instructions that may have been given to it.
Delay in delivery occurs when the goods have not been delivered within the agreed period or, if a deadline has not been agreed, when the actual duration of transport exceeds, taking into account the circumstances and, in particular, in the case of a partial load, the time required to assemble a full load under normal conditions, such time as is reasonable to allow diligent carriers.
- – The beneficiary may, without having to provide other proof, consider the goods as lost when they have not been delivered within thirty days following the expiry of the agreed period or, if they have not a deadline has not been agreed, within sixty days of taking over the goods by the carrier.
- – The person entitled may, upon receiving payment of compensation for the lost merchandise, request, in writing, to be notified immediately in the event that the merchandise is found during the year following the payment of compensation.It is given to him in writing act of this request.
- – Within thirty days following receipt of this notice, the person entitled may demand that the goods be delivered to him against payment of the debts resulting from the consignment note and against restitution of the compensation he has received, After deduction of any costs that would have been included in this compensation, and subject to all rights to compensation for delay in delivery provided for in article 23 and, if applicable, in article 26.
- – In the absence either of the request provided for in paragraph 2, or of instructions given within the period of thirty days provided for in paragraph 3, or if the goods were not found until more than one year after payment of compensation, the carrier disposes of it in accordance with the law of the place where the goods are located.
If the goods are delivered to the consignee without collection of the refund which should have been received by the carrier under the provisions of the contract of carriage, the carrier is bound to indemnify the sender up to the amount of the refund, except his recourse against the recipient.
- – If the shipper hands over dangerous goods to the carrier, he indicates to him the exact nature of the danger they present and possibly indicates to him the precautions to be taken.In the event that this notice has not been recorded on the consignment note, it is up to the sender or the recipient to prove, by any other means, that the carrier is aware of the exact nature of the danger presented by the transport of said goods.
- – Dangerous goods which have not been known as such by the carrier under the conditions provided for in paragraph 1 of this article, may at any time and in any place be unloaded, destroyed or rendered harmless by the carrier, and this , without any compensation;the sender is also responsible for all costs and damages resulting from their handing over for transport or their transport.
- – When, by virtue of the provisions of this Convention, compensation for total or partial loss of the goods is charged to the carrier, this compensation is calculated on the basis of the value of the goods at the place and at the time of care.
- – The value of the goods is determined according to the stock market price or, failing that, according to the current market price or, failing both, according to the value usual goods of the same nature and quality.
(*) 3. – However, the compensation may not exceed 8.33 units of account per kilogram of the missing gross weight.
- – The cost of transport, customs duties and other costs incurred during the transport of the goods are also reimbursed, in full in the event of total loss, and pro rata in the event of partial loss;otherdamages are not due.
- – In the event of delay, if the beneficiary proves that damage has resulted from it, the carrier is required to pay compensation for this damage which may not exceed the price of transport.
- – Higher compensation can only be claimed in the event of a declaration of the value of the goods or a declaration of special interest in delivery, in accordance with Articles 24 and 26.
(*) 7. – The unit of account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amount referred to in paragraph 3 of this article shall be converted into the national currency of the State to which the court seised of the dispute falls on the basis of the value of that currency on the date of the judgment or on the date adopted by mutual agreement. by the parties. The value, under Special Drawing Right, of the national currency of a State which is a member of the International Monetary Fund, is calculated according to the valuation method applied by the International Monetary Fund on the date in question for its own operations and transactions. . The value, under special drawing right, of the national currency of a State which does not
(*) 8. – However, a State which is not a member of the International Monetary Fund and whose legislation does not allow the provisions of paragraph 7 of this article to be applied may, at the time of ratification of the Protocol to the CMR or membership thereof, or at any time thereafter, declare that the limit of liability provided for in paragraph 3 of this article and applicable in its territory is fixed at twenty-five monetary units. The monetary unit referred to in this paragraph corresponds to ten thirty-first of a gram of gold for 900 fine thousandths. The conversion into national currency of the amount indicated in this paragraph shall be effected in accordance with the legislation of the State concerned.
(*) 9. – The calculation mentioned in the last sentence of paragraph 7 and the conversion mentioned in paragraph 8 of this article must be made in such a way as to express in the national currency of the State the same real value, as far as possible , than that expressed in units of account in paragraph 3 of this article. When depositing an instrument referred to in Article 3 of the Protocol to the CMR and whenever a change occurs in their method of calculation or in the value of their national currency in relation to the unit of account or to the monetary unit, States shall communicate to the Secretary-General of the United Nations their method of calculation in accordance with paragraph 7, or the results of the conversion in accordance with paragraph 8 of this article,
(*) Text resulting from the amending Protocol of July 5, 1978, which entered into force in France on July 13, 1982.
The sender may declare in the consignment note, against payment of a price supplement to be agreed, a value of the goods exceeding the limit mentioned in paragraph 3 of article 23 and, in this case, the declared amount replaces to this limit.
- – In the event of damage, the carrier shall pay the amount of the depreciation calculated on the basis of the value of the goods fixed in accordance with article 23, paragraphs 1, 2 and 4.
- – However, the compensation cannot exceed:
(a) if the entire shipment is depreciated by damage, the figure which it would have reached in the event of total loss;
(b) if only a part of the shipment is depreciated by damage, the figure which it would have reached in the event of loss of the depreciated part.
- – The sender may fix, by entering it in the consignment note, and against payment of a price supplement to be agreed, the amount of special interest on delivery, in the event of loss or damage. damage and for exceeding the agreed time limit.
- – If there has been a declaration of special interest on delivery, it may be claimed, independently of the compensation provided for in Articles 23, 24 and 25, and up to the amount of the declared interest, compensation equal to the additional damage which has been proven.
- – The person entitled can claim interest on the compensation.This interest, calculated at the rate of 5% per year, runs from the day of the complaint addressed in writing to the carrier or, if there has been no complaint, from the day of the legal action.
- – When the elements which serve as a basis for the calculation of the compensation are not expressed in the currency of the country where the payment is claimed, the conversion is made according to the rate of the day and of the place of payment of the indemnity.
- – When, according to the applicable law, the loss, damage or delay occurring during transport subject to this Convention may give rise to anextra-contractualclaim , the carrier may avail himself of the provisions of this Agreement which exclude its liability or which determine or limit the compensation due.
- – Whenextra-contractualliability for loss, damage or delay of one of the persons for whom the carrier responds under the terms of article 3 is called into question, this person may also avail himself of the provisions of this Convention which exclude liability of the carrier or which determine or limit the compensation due.
- – The carrier does not have the right to avail himself of the provisions of this chapter which exclude or limit his liability or which reverse the burden of proof, if the damage results from his fraud or a fault attributable to him. and which, according to the law of the court seised, is considered to be equivalent to fraud.
- – The same applies if the fraud or fault is the fault of the employees of the carrier or of any other persons whose services he uses for the performance of the transport when these employees or these other persons act in the exercise of their functions.In this case, these employees or other persons shall not have the right to avail themselves, as regards their personal liability, of the provisionsof this chapter referred to in paragraph 1.